query on long residency set(lr) visa

[majid3830]

hi Guys,

my wife cam to UK in july 2009, she is eligible to apply for ilr on 10 year route, but unfortunately in 2013 when she was expecting a baby she went to india she stayed in india for 215 days which has exceeded the 180 days period. we are really worried now.
is there any way that we can explain home office about the extended time when we make the application or would they just not consider and reject the application? any suggestions or ideas would be very helpful as we are really concerned.
also can someone say from their experience if postal / online which applications gives quick results?

thanks

[CR001]

It would be a outright refusal. She has broken her continuity of residence for ilr based on long residence and dshe doesn't qualify. Any single absence of 180 days or more breaks her residence for long residence ilr.

Pregnancy is not an exceptional or compassionate circumstance.

[majid3830]

hi,

thanks for the reply but the 180 days rule is discretionary i thought. can home office not consider any reasons that compelled her to stay inn india for a month more. i would really be thankful for any comments

[secret.simon]

the 180 days rule is discretionary i thought

The 180 day rule is not discretionary.

Discretion could be applied in disregarding "excess absences in compelling or compassionate circumstances", but if that discretion is exercised, it leads to FLR(LR), not ILR.

(Page 11)
If the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, the application should normally be refused.

However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.

This must be decided at senior executive officer (SEO) level with a grant of leave outside the Immigration Rules being the appropriate outcome.

Things to consider when assessing if the absence was compelling or compassionate
are:

• for all cases – you must consider whether the individual returned to the UK within a reasonable time once they were able to do so

• for the single absence of over 180 days:
o you must consider how much of the absence was due to compelling circumstances and whether the applicant returned to the UK as soon as they were able to do so
o you must also consider the reasons for the absence

• for overall absences of 540 days in the 10 year period:
o you must consider whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the 10 year residence period, and how soon they will be able to meet that requirement
o if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements
o however, if the absences were recent, the person will not qualify for a long time, and so you must consider whether there are particularly compelling circumstances

All of these factors must be considered together when determining whether it is reasonable to exercise discretion.

Also, as @CR001 mentioned above, pregnancy abroad is not a compassionate or compelling reason. That is a choice made by the parents, not an unexpected event.

[majid3830]

Hi,

Thanks for the update, looks like the chances of approval are very less , but just wanted to know if HO gives flr(lr) then how long is visa granted for and when will she be eligible for ilr?

Thanks

[CR001]

FLR LR is granted for 2 years.

What is her full immigration history and current visa she holds??

[majid3830]

Hi
Thanks for the quick reply. My wife came to UK in July 2009 and she went to India in March 2013 and came back in October 2013 (220days)she switched to spouse visa in 2018 as I got settled in that year and she became my dependent. He visa is due for renewal in July 2020 and she can apply for ilr on 5 year route of spouse visa in 2023 but the 10 year have passed in July 2019 so I thought if HO would consider her application on discretion, also can u let me know if she gets flr(lr) on set(lr) application then what options would be left over for applying her ilr . Plz let me know as we are very concerned. Thanks

[CR001]

I would suggest you continue on the spouse visa and apply to extend it if you meet all the requirements.

Then apply for ilr based on 5 years spouse visa or 10 year long residence in October 2023.

There is no discretion based on the circumstances you state to ignore the very long absence for ilr long residence.

The 180 days single absence rules is also not new. It has been in place for a long time and if you were aiming for long residence ilr for your wife, you should have researched the requirements before your wife went abroad for such a long period.

[Achilles.ali]

Hi, don’t want to give any false hopes but I was out of the country for almost 9 months , very long absence when my father passed away and my mother was alone back home. I did apply for ilr with a proper covering letter explaining the circumstances and my ilr on 10 years basis was approved. Many thanks

[CR001]

Hi, don’t want to give any false hopes but I was out of the country for almost 9 months , very long absence when my father passed away and my mother was alone back home. I did apply for ilr with a proper covering letter explaining the circumstances and my ilr on 10 years basis was approved. Many thanks

You applied a long time ago. Ho are not that lenient anymore and almost never excercise discretion anymore. There have been many refusals for long absences in recent years.